In summary, this point – in my view, the plaintiff's failure to make an application, demand or comment, and accordingly to which she is entitled to options in addition to the financial commission – constitutes an additional layer that strengthens my determination that there was no agreement between the parties on such entitlement. Moreover, I am of the opinion that the plaintiff's omission in this matter is more striking against the background of her many inquiries, through Peleg, in the context of the payment of the second half of the commission and the possibility of conversion. In other words, given that we are dealing with the parties negotiating and on the one hand – Peleg – who documents every request, including by recording conversations between the parties – Peleg's silence on such a significant issue is sufficient to show support for the determination, according to which, in real time, Peleg did not believe that the plaintiff was entitled to the options as claimed in the lawsuit.
- This background – i.e., the absence of a demand, the raising of an argument or a comment – regarding eligibility to receive options, is the one in light of which the meeting was held on September 24, 2019. The incorporation of the said meeting into the overall background strengthens the determination that there was no agreement between the parties on the allocation of options, in addition to the financial fee that can be converted. This is because, as appears from the documentation of the meeting (which was detailed in detail in paragraph 30 above of the judgment) – in the framework of this meeting, the demand for additional options was not mentioned. Moreover, it was clarified by Peleg that all disputes between the parties are limited to the rate of the commission and the right of conversion, and in addition, it became clear that the significance that Peleg attributes to clause 3.1.4 – is that even within the framework of which the company is given the right to convert the financial commission into shares – nothing more. An examination of the documentation of the meeting within the overall background – when the meeting constitutes an additional layer between the plaintiff's omissions in raising a claim regarding eligibility for options (and as a premature advance also in raising a claim regarding entitlement to commission in respect of the second offering) – is sufficient to strengthen the determination that Peleg's failure to raise such a demand in the framework of the meeting, stems from the fact that there was no basis for the demand at all, and this is what Peleg even believed in real time. In other words, in my view, nothing was raised because there was no entitlement to anything.
Thus, and as detailed in detail above, it appears from the transcript of the conversation that already at the beginning of the meeting, it was agreed between the parties that the plaintiff was entitled to the second half of the commission, and both parties confirmed that the disputes between them revolved only over the manner of payment of the commission and the possibility of converting the commission into shares. The parties also agreed that there is a problem in allowing a conversion, when in the second agreement there is no anchor for the payment of the second half of the commission, and as a result, there is no anchor for the possibility of conversion. Moreover, as appears from Ben Shabbat's words at that meeting, since this is a public company, it is not realistic to allow conversion at this stage according to the value at the time of the IPO.
- As explained by me above, the part of the conversation in which Peleg and Ackerman are talking alone is particularly important – since this part is capable of revealing Peleg's secrets and his authentic interpretation of the disputed section. As detailed by me at length, in this part of the conversation Peleg explicitly revealed his position, according to which clause 3.1.4 is a clause that allows the conversion of the financial commission (and not the receipt of stock options at the full value of the financial commission). This is how Peleg tells Ackerman that this clause allows: "to convert all the money we received into shares" – that is, first, he refers to this clause as a conversion clause and not as an additional option allocation clause. In addition, according to his approach, the conversion under this section is of the money received (and he has no right to options for additional shares in the value of the money received). Peleg also emphasized in the conversation that he will be able to say in the future that he has waived clause 3.1.2 of the conversion by 16 cents, but has not given up the possibility of converting by 20 cents – that is, he is once again referring to clause 3.1.4 as a conversion clause, which he can use to convert the second half of the commission after he supposedly waives the possibility of conversion according to clause 3.1.2. Reinforcement that Peleg's intention is to convert the second half of the commission and not to add options, can be found later in the conversation, when Ackerman asks Peleg: "We have already done half of it" and Peleg replies – "Correct" – that is, confirming that the required conversion is only for the second half of the commission, since the first one has already been converted according to 3.1.2 and does not reflect his approach in this proceeding Whereby he is entitled to options for shares at the full value of the commission. I will note that in the course of his cross-examination, Peleg confronted his words in this recording, and claimed that when he referred to this section as a "conversion" clause, he meant "conversion in the meaning of options" (see his testimony on page 200, lines 8-9), i.e., he adhered to his claim as it found expression in the lawsuit, but he did not reconcile it with his words, which arise differently.
I will note that in Ackerman's cross-examination, he was accused of failing to address the issue of options in the framework of the meeting on September 24, 2019. In response, Ackerman first confirmed that the issue of options was not raised at all in the conversation (see page 30, lines 11-16), but he claimed that he and Peleg had prepared in advance for the meeting and decided to take the step-by-step approach – first receiving the money and then dealing with the issue of options (see pages 30-31 and his testimony on page 77 of the minutes). I did not find this argument for two reasons – first, a review of the transcript of the conversation between Ackerman and Peleg shows that even when Ackerman and Peleg were left alone, they did not talk to each other about the issue of options, and moreover, in the framework of this conversation between them, Peleg interpreted clause 3.1.4 as a clause that allows conversion. Second, from the words exchanged between Ackerman and Peleg, at the same stage in the meeting in which they spoke alone, it is clear that there was no coordination between them, but that during the meeting, Ackerman was updated on the details by Peleg.